Citation Nr: 0408159
Decision Date: 03/30/04 Archive Date: 04/02/04
DOCKET NO. 03-10 548 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for Hepatitis C.
2. Entitlement to service connection for a psychiatric
disorder, claimed on a secondary basis.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
Christopher P. Kissel, Counsel
INTRODUCTION
The veteran served on active duty from April 1970 to April
1973.
In a September 1973 rating decision, the Department of
Veterans Affairs (VA) Regional Office (RO) in Indianapolis,
Indiana (the RO) granted the veteran's claim of entitlement
to hepatitis and assigned a 10 percent disability rating.
This case comes to the Board of Veterans' Appeals (the Board)
on appeal from a March 2002 rating decision of the RO which
denied an increased disability rating for the veteran's
service-connected hepatitis; denied service connection for
Hepatitis C (claimed as a separate and distinct disability
from the service-connected hepatitis) and denied service
connection for a psychiatric disability (characterized as a
"nervous condition"), claimed to be secondary to the
service-connected hepatitis.
The veteran disagreed with the RO's decision as to the latter
two issues.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
After having reviewed the VA claims folder, the Board
believes that a remand of this case is necessary.
Reasons for remand
Additional evidentiary development
(i.) VA medical records
The Board observes that certain VA medical records, not
currently associated with the record, may be pertinent to the
veteran's claims. VA medical records obtained in connection
with the present appeal included outpatient records from the
VA Outpatient Clinic (OPC) in Evansville, Illinois dating
from January 2000 to November 2000. However, in connection
with a September 2001 VA psychiatric examination the veteran
reported a history of being seen in the Evansville OPC "on
and off" since 1987, and he reported a history of treatment
at the VA Medical Center (VAMC) in Danville, Illinois.
Further, the record shows that the veteran was admitted to
the Danville-VAMC in December 1992 for treatment of alcohol
dependence. VA has a clear obligation to obtain these
records or confirm their unavailability. See 38 C.F.R.
§ 3.159(c)(2) & (3) (2003); see also Bell v. Derwinski, 2
Vet. App. 611 (1992).
(ii.) Medical opinion
The veteran contends, essentially, that the condition
diagnosed in service as "viral hepatitis," which has been
service connected and rated 10 percent disabling since 1973,
was in fact chronic Hepatitis C.
It is undisputed that the evidence in the file shows that
viral hepatitis was first treated and diagnosed in service.
As noted elsewhere in this decision, service connection was
granted for hepatitis in 1973. It appears this condition has
been inactive for many years, and the veteran evidently
admits as much.
The veteran was more recently diagnosed with chronic
Hepatitis C on VA examination in September 2001. Neither
that examination report nor any other evidence of record
provides a medical nexus opinion as to whether the hepatitis
condition treated during the veteran's military service is
the same as, or is related to, the currently diagnosed
Hepatitis C and/or whether the currently diagnosed Hepatitis
C was otherwise related to the veteran military service.
This includes the question of whether intravenous drug use
and alcohol abuse, both of which are reported by history as
occurring in service, are involved.
Given these facts, the Board believes a records review is in
order to address whether the veteran's currently diagnosed
Hepatitis C is related to service. See 38 C.F.R.
§ 3.159(c)(4) (2003) [medical examination/opinion is
necessary if the information and evidence of record does not
contain sufficient competent medical evidence to decide
claim].
Veterans Claims Assistance Act of 2000
The Board also finds that a remand is in order to ensure
compliance with the enhanced duty to notify and assist
provisions enacted by the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA)
[codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A]. As
part of its duty to notify, VA is required to specifically
inform the claimant which portion of the information and
evidence, if any, is to be provided by the claimant and which
portion, if any, VA will attempt to obtain on behalf of the
claimant. See 38 U.S.C.A. § 5103 (West 2002). In this case,
the record shows the RO provided the veteran with general
notice of the statutory and regulatory provisions of the VCAA
in its statement of the case (SOC) furnished to him in April
2003; however, the notice contained in this SOC was
nonspecific as to the issues on appeal.
The United States Court of Appeals for Veterans Claims (the
Court) has repeatedly vacated Board decisions where the VCAA
notice failed to specify who was responsible for obtaining
relevant evidence or information as to the specific claims
that were subject to the appealed Board decision. See e.g.
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles
v. Principi, 16 Vet. App. 370 (2002). It is abundantly clear
from these judicial rulings that providing a claimant with
general notice of the VCAA in a SOC or supplemental statement
of the case will not satisfy the duty-to-notify requirements
of the VCAA, as interpreted by the Court.
The psychiatric claim
The Board notes that the claim was developed by the RO as a
secondary service connection claim, secondary to the service-
connected hepatitis. This does not mirror the veteran's
claim. The veteran appears to contend that he developed
anxiety and/or depressive disorder associated with being
afflicted with life-threatening Hepatitis C, and he has
indicated that the service-connected hepatitis "does not
bother him anymore". See the report of a September 2001 VA
psychiatric examination.
In any event, the psychiatric claim secondary to Hepatitis C
obviously may not be granted unless and until the service
connection for Hepatitis C is granted. Even then, there
remains the question of the relationship, if any, between
Hepatitis C and the psychiatric disability. The RO should
conduct appropriate development and adjudication of this
issue as future circumstances warrant.
This case is therefore REMANDED to the Veterans Benefits
Administration (VBA) for the following actions:
1. VBA must review the claims file and
ensure that all notification and
development action required by the VCAA,
implementing or clarifying law, court
decisions and/or VA directives is
completed.
2. VBA should make appropriate inquires
to the Evansville OPC and the Danville
VAMC for the purpose of obtaining copies
of all medical reports that these two
facilities had in their possession
pertaining to treatment provided to the
veteran. If additional medical evidence
is identified which is pertinent to the
veteran's claims, reasonable efforts
should be made to secure such evidence
and associate it with the veteran's VA
claims folder.
3. VBA should then make arrangements to
have a VA physician conduct a records
review of this veteran's claims file to
determine whether it is at least as
likely than not that the currently
diagnosed chronic Hepatitis C is
etiologically related to the veteran's
military service. The reviewer should
specifically address the contentions that
have been advanced by the veteran
concerning the relationship between this
condition and the in-service viral
hepatitis, as well as any other possible
etiology, to include intravenous drug use
and alcohol abuse. A memorandum should
be prepared which includes the reviewer's
findings, and the memorandum should be
associated with the veteran's VA claims
file. If the examiner believes that
physical examination and/or diagnostic
testing of the veteran is required in
order to render an informed opinion, such
should be accomplished
4. Thereafter, after undertaking any
other development deemed to be
appropriate, VBA must readjudicate the
issues on appeal. A supplemental
statement of the case should be prepared
if any benefit sought on appeal remains
denied. The veteran and his
representative should be provided with
the supplemental statement of the case,
and an appropriate period of time should
be allowed for response.
Thereafter, the case should be returned to the Board, if it
is otherwise in order.
The veteran has the right to submit additional evidence and
argument on the matters addressed by the Board in this
remand. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002)
(Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, provides for expeditious handling of all cases that have
been remanded by the Board.
See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).